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The Wolk Law Firm v. United States of America National Transportation Safety Board

United States District Court, E.D. Pennsylvania

October 10, 2019

THE WOLK LAW FIRM a/k/a Arthur Alan Wolk Associates


          Savage, J.

         The Wolk Law Firm (Wolk), which represents aircraft accident victims and their families, brings three claims against the National Transportation Safety Board (NTSB), the agency responsible for investigating civil aviation accidents, for “obstruction of justice and violation of due process, ” violation of 49 C.F.R. § 837.4, [1] and violation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for failure to provide materials requested. The NTSB moves to dismiss the first two claims on the basis of sovereign immunity and failure to state a claim.

         Because we conclude that the NTSB enjoys sovereign immunity, we shall dismiss the challenged claims.


          In the course of an investigation, the NTSB takes custody of wreckage and other evidence, such as photographs, videos, notes and witness statements.[2] Wolk has requested investigative materials related to ten civil aviation accidents in which it represents victims and their families.[3] It also made a request under 49 C.F.R. § 837.4 for wreckage relating to one of the accidents.[4] The NTSB has refused or failed to produce the requested materials.[5]

         Invoking sovereign immunity, [6] the NTSB moves to dismiss Wolk's claims for obstruction of justice and violation of due process and violation of 49 C.F.R. § 837.4.[7] It also argues that Wolk fails to state a claim for violation of due process because the rights allegedly violated are statutory, not constitutional.[8]

         Wolk responds that the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq., establishes “a broad presumption in favor of judicial review of agency action” notwithstanding the NTSB's assertion of sovereign immunity.[9] It maintains that the NTSB's withholding and destruction of evidence violates its Fifth, Seventh and Fourteenth Amendment rights.[10] It contends that 49 C.F.R. § 837.4 contemplates subject matter jurisdiction over a claim under the regulation.[11]

         In its reply, the NTSB points out that Wolk does not assert an APA claim in its First Amended Complaint (FAC).[12] Even if it did, the NTSB asserts the claim would fail because Wolk has an adequate remedy provided by FOIA and because Wolk has failed to allege that the NTSB acted arbitrarily or capriciously in refusing to provide materials not covered by FOIA.[13] It also argues that an APA claim is premature because the NTSB has not taken action that may be reviewed under the APA.[14] The NTSB also contends that there is no private right of action for obstruction of justice.[15]

         Legal Standard

          The standard of review of a motion to dismiss made pursuant to Rule 12(b)(1) depends on whether the motion is a facial attack or a factual attack. See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014); Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). Consequently, we must distinguish between facial attacks and factual attacks. A facial attack “is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court” because of some jurisdictional defect. Constitution Party, 757 F.3d at 358. In reviewing a facial attack, as we do in considering a Rule 12(b)(6) motion, we accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences arising from them in favor of the plaintiff. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).

         A factual attack is “an argument that there is no subject matter jurisdiction because the facts of the not support the asserted jurisdiction.” Constitution Party, 757 F.3d at 358. In other words, in a factual challenge to jurisdiction, the defendant disputes the allegations on which jurisdiction depends. In that instance, we need not accept plaintiff's allegations as true and we may consider materials outside the complaint to determine whether the exercise of federal jurisdiction is proper. CNA v. United States, 535 F.3d 132, 139, 145 (3d Cir. 2008).

         The NTSB makes a facial challenge. It argues that the court lacks jurisdiction because the NTSB enjoys sovereign immunity as to Wolk's claims. Thus, we shall accept as true the facts as they appear in the FAC and draw all possible inferences from those facts in Wolk's favor.


         Unless waived, sovereign immunity shields federal agencies from suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity is a complete defense because it divests the court of jurisdiction to hear the claim. See United States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000).

         Wolk contends that 49 C.F.R. § 837.1 waives the NTSB's sovereign immunity because it contemplates receipt by an NTSB employee “of a subpoena, order, or other demand . . . by a court or other competent authority or by a private litigant.” 49 C.F.R. § 837.1(a). A government regulation alone cannot waive sovereign immunity. Heller v. United States, 776 F.2d 92, 98 n.7 (3d Cir. 1985). The plaintiff must identify a statute that unequivocally waives immunity. Clinton Cty. Comm'rs, 116 F.3d at 1021 (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992) (additional quotations omitted)). Here, Wolk relies on 49 C.F.R. § 837.4. This regulation does not apply to actions against the NTSB. It “sets forth procedures to be followed when requesting material for use in legal proceedings (including administrative proceedings) in which the [NTSB] is not a party . . . .” 49 C.F.R. § 837.1(a) (emphasis added).

         Wolk invokes the APA, which provides an express waiver of sovereign immunity. It permits a person “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” to bring an action for non-monetary relief. 5 U.S.C. § 702.

         To seek relief under the APA, the plaintiff must assert a claim under it. Clear Sky Car Wash LLC v. City of Chesapeake, Va., 743 F.3d 438, 445 (4th Cir. 2014) (finding plaintiff “cannot seek relief under the APA because it never asserted an APA claim in its complaint, ” notwithstanding reference to APA in statement of jurisdiction). In the FAC, Wolk does not specifically invoke the APA. But, because he could do so in a second amended complaint, we address the issue now in the interest of judicial economy and efficiency.

         Under the APA, “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. § 704. The NTSB contends that an APA claim would fail because Wolk has an adequate remedy provided by FOIA.[16] Wolk seeks “documents, data and evidence” under FOIA.[17] His obstruction of justice and violation of due process claim seeks these materials and ...

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